August v. State

• Decision Date: 12 November 1912
• Docket Number: 4,401.
• Citation: 76 S.E. 164,11 Ga.App. 798
• Parties: AUGUST v. STATE.
• Court: Georgia Court of Appeals

76 S.E. 164

11 Ga.App. 798

AUGUST v. STATE.

No. 4,401.

Court of Appeals of Georgia

November 12, 1912

Syllabus by the Court.

"Intoxicating liquor may be the subject-matter of larceny, though it is not the subject-matter of lawful sale." Mance v. State 5 Ga.App. 229, 62 S.E. 1053.

Even if a place where intoxicating liquors are exclusively sold cannot, under the existing law of this state, be a place of business, within the meaning of section 146 of the Penal Code of 1910, defining the offense of burglary, yet where it appears that articles which were the lawful subject-matter of sale were kept in the place of business, in connection with intoxicating liquors, for the purpose of sale, a conviction of burglary is authorized, if it be shown that the accused broke and entered such a place of business with intent to commit a larceny therefrom, either of the intoxicating liquors or of the other articles kept therein.

In this state principals in the first and second degree are punished alike, and one indicted as principal in the first degree may be convicted upon evidence showing him to have been a principal in the second degree. It is therefore not error, in a proper case, to instruct the jury substantially that there is no practical distinction between principals in the first degree and principals in the second degree, and that if the state has shown, beyond a reasonable doubt, that the accused is guilty as a principal in either the first or the second degree, a general verdict of guilty would be authorized. Nor was it error in the present case to charge specifically that the accused might be convicted if it appeared either that he actually broke and entered the place of business with intent to steal, or that he was present aiding and abetting some one else in the breaking and entering with like intent.

The following instruction was abstractly correct and warranted by the evidence: "The exclusive and unexplained possession of stolen property recently after a burglary, in the commission of which a theft was perpetrated, may raise a presumption of fact that the party in possession is the burglar, where the burglary has been established beyond a reasonable doubt; and the burden would be upon the person in whose recent possession the goods, if stolen, were found, to explain such possession. It is a presumption arising out of fact, and is therefore a matter for the jury; what would be recent possession is a...